Workers’ Compensation Board
CLAIM NO. 201166415
BROCK & BROCK CONTRACTING
and HON. OTTO DANIEL WOLFF, IV,
ADMINISTRATIVE LAW JUDGE
* * * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
review of the decision rendered January 8, 2014 by Hon. Otto
attorney withdrew after the filing of the appeal, and Hall proceeded pro se.
October 27, 2011. No petition for reconsideration was
On appeal, Hall essentially argues the ALJ’s
substantial evidence. Because the ALJ’s determination is
supported by substantial evidence, and a contrary result is
not compelled, we disagree and affirm.
Hall filed a Form 101 on November 21, 2012
under a beltline while working for Brock & Brock Contracting
(“Brock”) where he was employed as a general laborer at a
The employment history Hall provided noted he
the alleged accident on October 27, 2011.
Hall testified by deposition on February 21, 2013,
resident of Evarts, Kentucky, and was born on May 28, 1962.
He is a high school graduate, and attended a few weeks of
college, but completed no courses.
subsequently reassigned to Hon. Allison Jones, ALJ. After ALJ Jones was
appointed to the Kentucky Court of Appeals, the claim was assigned to ALJ
Hall sustained a prior low back injury while
working in Michigan in 1987. He subsequently had low back
surgery in March 1988, and again in September 1988. He
moved back to Kentucky after the second surgery and stated
he has had back pain off and on since that time. He
received a settlement for the Michigan workers’ compensation
claim. He later sustained a back strain from pulling a mine
cable in 2000 for which he also received a settlement.
Hall’s job with Brock consisted of performing
was a maintenance shift. He helped on a roof bolting
machine, delivered supplies with a low truck, mucked the
beltline, and built brattices.
Hall stated he had no restrictions for his back
prescribed by Dr. Richard Lingreen in Frankfort due to
previous problems with narcotic addiction. Dr. Lingreen
also prescribed Lortab for his back pain. He stated his
longstanding issues with addiction also lead to some
criminal activity. Brock denied his claim, and refused to
pay either temporary total disability (“TTD”) benefits or
medical benefits, and he did not seek medical treatment
until a few months after the accident. He has not returned
briefly drew some unemployment benefits.
Hall testified he was untruthful to his various
had chronic complaints of low back pain in an attempt to
obtain medication for his addiction. He admitted he was
dismissed from more than one pain clinic due to misleading
his physicians, and obtaining pain medication from multiple
sources. He stated he was truthful about injuring his low
back on October 27, 2011 as he was shoveling muck, although
he had previously lied regarding his complaints of low back
Hall supported his claim with the June 14, 2012
attorney’s request. Dr. Owen noted the 1988 low back
injury. Hall complained of leg pain, appetite loss, dizzy
spells, foot pain, cold or numb feet, numbness and tingling.
Hall acknowledged a history of drug addiction, chronic pain
and opioid use. Dr. Owen provided the following diagnosis:
Persistent low back pain with
nonverifiable radicular symptomatology
and marginal radicular sign associated
with chronic narcotic usage. The
statement that he was on methadone and
did not tell me about it today, nor did
he tell Dr. Hoskins about it, needs to
be verified. It is in Dr. Jenkinson’s
note as such and certainly would have a
of active component at the time of the
injury 10-27-2011. In terms of that
injury, I do think there is a
significant problem. I do not think it
is just sprain/strain inasmuch as it has
lasted so long and is associated with
marginal signs; that being diminished
reflex in the left ankle, mildly
diminished circumference of the left
thigh associated with vibratory
abnormality in the left foot. However,
without an MRI, it would be impossible
to definitively determine a single level
or whether it has multiple levels.
to the American Medical Association, Guides to Evaluation of
Permanent Impairment, Fifth Edition (“AMA Guides”), of which
he attributed 80% to the October 27, 2011 work incident. He
opined Hall should lift less than thirty pounds on a maximum
basis, and avoid activities requiring bending, squatting or
stooping. He stated Hall does not retain the capacity to
return to the type of work performed at the time of the
Brock filed the October 27, 2007 record of Dr. Sai
low back pain for which he had treated with Methadone and
Duragesic patches. EMG/NCV studies revealed peripheral
neuropathy. Dr. Gutti prescribed two epidural steroid
injections, Mobic, Relafen, Lyrica and Ultram.
Brock also filed the January 25, 2012 office note
of Dr. Abdul K. Dahhan. Dr. Dahhan noted Hall was injured
in a motor vehicle accident on January 23, 2012 from which
he complained of neck and chest pain. He noted Hall was
taking Methadone and Xanax, and he prescribed Motrin 800 mg.
Dr. David Jenkinson evaluated Hall on April 18,
acute onset of low back pain on October 27, 2011 while
shoveling mud, which radiated into Hall’s left leg. Hall
complained of mid-back pain radiating into the low back and
left leg. He diagnosed a history of possible low back
sprain/strain, and a long history of chronic back pain and
opioid dependence. He noted Hall had not been candid with
Dr. Robert Hoskins regarding his history and previous use of
medication. He stated Brock may have sustained a minor
sprain/strain, and would need no restrictions, either
temporary or permanent. He assessed a 0% impairment rating
pursuant to the AMA Guides. He also opined no additional
treatment was required.
Brock filed an addendum prepared by Dr. Jenkinson
He specifically stated, “It is apparent that Mr. Hall had
been having treatment for chronic low back pain several
years prior to the alleged injury of October 27, 2011.” He
outlining active conditions.
Brock filed records from the Cloverfork Clinic
from July 24, 2001 through April 10, 2006. Those records
contain notations of specific treatment for acute complaints
of low back pain stemming from pulling on a curtain and
heavy cable on July 23, 2001, and also document continued
treatment for low back pain, narcotic abuse, and overdosing
Hall treated at Harlan ARH from April 12, 1994
from his injury and subsequent surgeries in Michigan. The
records document ongoing treatment with various medication
including Naprosyn, Ultram, Robaxin, Oxycontin and Lortab.
On April 15, 2009, Hall was advised prescriptions would no
longer be written for him due to his receiving prescriptions
from multiple doctors.
Dr. Gregory Dye’s office notes dated August 9,
introduced. In 2004, Dr. Dye noted Hall was treating with
Xanax, Lortab and Oxycontin for his low back pain. In 2007,
he noted continued complaints of low back pain and
back pain radiating into both legs.
Brock filed the records review report completed by
sustained no permanent injury due to the October 27, 2011
incident. He likewise assigned no impairment rating
attributable to that incident. He stated he agreed with Dr.
Jenkinson’s report, but took issue with Dr. Owen’s
Brock also filed records from the Lansing General
contain the operative notes from the lumbar surgeries
performed at the L5-S1 level on March 15, 1988 and September
19, 1988. The surgeries consisted of laminotomy,
discectomy, and bilateral laminotomy.
Finally, Brock filed the February 18, 1991 record
notes Hall’s three and a half year complaints of low back
and left leg pain. Brock was diagnosed with chronic low
back pain, and status post two lumbar laminectomies.
A benefit review conference (“BRC”) was held on
the issues preserved were benefits per KRS 342.730; work-
relatedness/causation; injury as defined by the Act;
The ALJ rendered his decision dismissing Hall’s
inconsistencies between Hall’s testimony and the content of
his pre-injury records. He specifically stated, “It is also
disconcerting when a claimant acknowledges he was willing to
lie to his treating physicians in his efforts (mostly
successful) to obtain narcotic medication prescriptions.”
He noted Hall acknowledged he had repeatedly lied to many of
his pre-injury treating physicians, in particular Dr.
Lingreen, to obtain medications. The ALJ also referenced
the fact Hall had been dismissed from numerous pain
treatment programs in the past due to violations of his
prescribed course of medication management.
The ALJ further noted, “He contends his present
pre-injury complaints of back pain are untrue and should now
The ALJ specifically found as follows:
whether or not Plaintiff’s alleged
present back pain and problems are
connected to his alleged work incident
of October 27, 2011. Defendant obtained
two IME-type reports. One of Defendant’s
IME physicians, Dr. Russell Travis, a
review. The date of the first record
reviewed by Dr. Travis was May 2, 1994
and the last record reviewed by Dr.
Travis was dated January 21, 2013.
Pursuant to his review of Plaintiff’s
almost 20-years, Dr. Travis concluded,
“there was no evidence of any permanent
injury. The most Mr. Hall may have
suffered would be a lumbar sprain and
strain on that date.” The basis for Dr.
Travis’ conclusions was his review of
approximately 100 medical records,
reports pertaining to Plaintiff’s pre-
injury medical status, and he also read
and noted Plaintiff’s deposition
testimony. The thoroughness of Dr.
Travis’ review provides compelling
evidence that Plaintiff’s complaints of
back pain, which Plaintiff associates
with his work injury, are no different
than the complaints Plaintiff had on the
day prior to the day of Plaintiff’s
possible work-related lumbar sprain or
A review of Plaintiff’s extensive pre-
Plaintiff’s pre- and post-injury
complaints of back pain, are basically
the same. The expert medical input of
Defendant’s two physicians constitutes
persuasive proof Plaintiff’s present
complaints of back pain were not caused
by his October 27, 2011 work incident.
On the issue of causation, Plaintiff’s
medical records, for years prior to his
work injury, squarely contradict what he
is now contending. It is clear that
prior to and at the time of his work
injury, Plaintiff continuously reported
basically the exact same complaints he
now attempts to link to his work injury.
Plaintiff cannot have it both ways.
No petition for reconsideration was filed by
outlining what he perceived to be incorrect findings from
the ALJ who he believed was mistaken. This Board accepted
the tendered document as Hall’s brief. Because Hall is
pro se, we will attempt to explain the
fundamental legal principles controlling how this Board must
decide an appeal.
In the Kentucky’s workers’ compensation system,
the duties of a jury, the ALJ is commonly referred to as
As fact-finder, the ALJ reviews the
evidence submitted by the parties and decides which
testimony from the various witnesses is more credible and
best represents the truth of the matter or matters in
dispute. The ALJ, as judge, then applies the law to the
facts as he determines them to be true. As a matter of
law, the facts as decided by the ALJ cannot be disturbed on
appeal by this Board so long as there is substantial
evidence of record to support the ALJ’s decision. See KRS
342.285(1); Special Fund v. Francis, 708 S.W.2d 641 (Ky.
Although we understand Hall is frustrated
regarding the dismissal of his claim, we also recognize the
ALJ’s job as fact-finder is difficult. As a rule, in every
worker’s compensation claim, both sides resolutely contend
they have presented evidence of “the truth” concerning
those matters at issue. It is for this very reason in
cases where the evidence is conflicting, the facts
concerning an issue as determined by the ALJ are afforded
vast deference as a matter of law on appellate review.
Authority establishes Hall, as the claimant in a
of the essential elements of his cause of action before the
ALJ. Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979).
Since Hall was unsuccessful in his burden of proving his
case, the question on appeal is whether the evidence is so
overwhelming, upon consideration of the record as a whole,
as to compel a finding in his favor. Wolf Creek Collieries
v. Crum, 673 S.W.2d 735 (Ky. App. 1984).
“Compelling evidence” is defined as evidence so
conclusion as the ALJ. REO Mechanical v. Barnes, 691
S.W.2d 224 (Ky. App. 1985). As fact-finder, the ALJ has
the sole authority to determine the weight, credibility and
substance of the evidence. Square D Co. v. Tipton, 862
authority to judge all reasonable inferences to be drawn
from the evidence. Miller v. East Kentucky Beverage/
Pepsico, Inc., 951 S.W.2d 329 (Ky. 1997); Jackson v.
General Refractories Co., 581 S.W.2d 10 (Ky. 1979). The
ALJ may reject any testimony and believe or disbelieve
various parts of the evidence, regardless of whether it
comes from the same witness or the same adversary party’s
total proof. Magic Coal Co. v. Fox, 19 S.W.3d 88 (Ky.
2000); Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999).
Mere evidence contrary to the ALJ’s decision is not
adequate to require reversal on appeal. Id. In order to
reverse the decision of the ALJ, it must be shown there was
no substantial evidence of probative value to support his
decision. Special Fund v. Francis, supra.
supporting the ALJ’s dismissal of Hall’s claim. In making
his determination, the ALJ relied upon both lay and medical
testimony. He specifically discussed Hall’s lack of
credibility due to the inconsistencies in his testimony, and
his prior treatment. He also specifically noted the
opinions of Dr. Travis, which constitutes substantial
evidence supporting the dismissal of this claim. Therefore,
a contrary result is not compelled. The ALJ properly
and reached a decision supported by substantial evidence
and in conformity with the law. Thus, we are without
authority to direct a different result.
Accordingly, the January 8, 2014 Opinion and
Wolff, IV, Administrative Law Judge, is hereby AFFIRMED.
EVARTS, KY 40828
COUNSEL FOR RESPONDENT:
HON W BARRY LEWIS
HAZARD, KY 41702
ADMINISTRATIVE LAW JUDGE:
HON OTTO DANIEL WOLFF, IV
657 CHAMBERLIN AVENUE